Summary
In Marshall v. Cozart, 94 Ga. App. 614 (95 S.E.2d 729) (1956), the only decision cited by the majority, the testator devised her home to her mother "for and during her natural life, with remainder" to her son.
Summary of this case from Martin v. HeardOpinion
36301.
DECIDED NOVEMBER 20, 1956.
Dispossessory warrant. Before Judge Fort. Muscogee Superior Court. May 25, 1956.
Paul Blanchard, Arthur F. Copland, for plaintiff in error.
John G. Cozart, W. Stanford Willis, contra.
The trial judge erred in denying the defendant's motion for new trial.
DECIDED NOVEMBER 20, 1956.
John G. Cozart took out a dispossessory warrant against George Marshall in the Municipal Court of Columbus. The defendant filed his counter-affidavit and bond and the proceedings on the dispossessory warrant were returned to the Superior Court of Muscogee County.
The material portions of the defendant's counter-affidavit alleged: "Deponent says that he is in possession of premises No. 1700 Fifth Avenue, in Columbus, Georgia, and is a tenant in common of said premises with John G. Cozart, same being the premises from which said Cozart is seeking to dispossess him in this action.
"Deponent says that he and his wife, Emma Parker Mahone Marshall, resided on said premises prior to and at the time of her death on March 6, 1953, and that he has resided thereon continuously from the time of his wife's death and now resides thereon and is rightfully in possession of same as co-tenant with said Cozart.
"Deponent says that his wife, Emma Parker Mahone Marshall, executed and published her last will and testament on Aug. 3, 1950, and that same was drafted by said John G. Cozart as her attorney and that at the time of her death she died seized and possessed of said premises No. 1700 Fifth Avenue, in Columbus, Georgia. Deponent says that her will was duly admitted to probate in common form on March 11, 1953, in the Court of Ordinary of Muscogee County, Georgia, and deponent attaches hereto a true copy of her said will and makes the same a part of this amended affidavit.
"Deponent says that by the terms of said will, his wife, in Item 2 thereof, gave her home place, to wit, premises No. 1700 Fifth Avenue, Columbus, Georgia, to her mother, Lila Parker, for life and the remainder to her son, William Henry Mahone, subject, however, to deponent's right, set forth in Item 3 of said will, to reside in said residence so long as he shall live and remain unmarried, which deponent asserts made him a tenant in common with Lila Parker and William Henry Mahone.
"Deponent says that Addie Parker Hunter, named executrix in Item 5 of said will, duly qualified as such executrix and assented to the devises of No. 1700 Fifth Avenue, Columbus, Georgia, to Lila Parker, William Henry Mahone and deponent, as made by her testatrix, deponent's wife.
"Deponent says that thereafter, on January 6, 1955, John G. Cozart claimed to have acquired by deed the remainder interest of William Henry Mahone and on January 7, 1955, the interest of Lila Parker, at which times deponent was in possession of and residing in the residence of testatrix, No. 1700 Fifth Avenue, in Columbus, Georgia, and claiming the right to reside there so long as he lived and remained unmarried, and that deponent has remained unmarried and that these facts were well known to John G. Cozart. Deponent says that John G. Cozart also knew of deponent's possession of said premises and his interest therein, the latter fact being known to him by reason of having drawn the will of deponent's wife. Deponent says that he has never remarried and is now single.
"Deponent says that at the time his wife died, he and his wife were the sole occupants of the residence, No. 1700 Fifth Avenue, except for a relatively short period prior to his wife's death he employed a woman named Bennie Boddy to live in the house to nurse and take care of his wife, who at that time was not in good health.
"Deponent says that Lila Parker has never resided in nor occupied said residence No. 1700 Fifth Avenue since the death of deponent's wife.
"Deponent says that during the time Addie Hunter, as executrix of the will of deponent's wife, was administering the estate of her testatrix, she rented out portions of said residence No. 1700 Fifth Avenue to various tenants, and as such executrix received the rents therefrom, and that the said Addie Hunter continued to rent out portions of said residence after she had assented to the vesting of the devises above set forth and that she continued to do so up until John G. Cozart claimed to have acquired the interests of Lila Parker and William Henry Mahone in said premises No. 1700 Fifth Avenue, Columbus, Georgia. Deponent says that during this period while said portions of said residence were being so rented deponent occupied one bed room and shared the living room, kitchen and bath with said tenants.
"Deponent says that after John G. Cozart claimed to have acquired the interests of Lila Parker and William Henry Mahone, a verbal agreement was entered into on his behalf with said John G. Cozart on January 31, 1955, without prejudice to other rights of the said parties, which said agreement was to begin February 1, 1955, and last for a period of twelve months, in which said Cozart agreed to give to George Marshall all of said Cozart's rights to any and all rents and profits that might accrue from No. 1700 Fifth Avenue, whether said premises were rented or not, and for which deponent agreed to pay said Cozart $47.50 per month, said sum being agreed upon to stand in lieu of any rents and profits that might be received from said premises and to avoid the necessity for an accounting between deponent and the said Cozart as tenants in common, and to permit deponent to select what persons might live in the house with him and not to have this a matter for determination by him and the said Cozart.
"Deponent says that each month, beginning with February 1955 and through November 1955, he has paid to said John G. Cozart the sum of $47.50, the sum agreed upon as his share as tenant in common of the rents and profits from 1700 Fifth Avenue. Deponent says that on December 12, 1955, a tender of $47.50 was made to said Cozart and he refused to accept same, and thereafter instituted the present dispossessory proceedings."
Upon the trial of the case the evidence disclosed that the plaintiff and the defendant's counsel had made an oral agreement that the defendant would pay the plaintiff $47.50 per month. The plaintiff insisted that this payment was rent, but the defendant's counsel insisted that it was payment in lieu of the plaintiff's right to control part of the house. Both parties agreed that the agreement was made "without prejudice."
Upon conclusion of the evidence both parties made a motion for a directed verdict. The trial judge sustained the plaintiff's motion and directed the jury to return a verdict in favor of the plaintiff. The defendant filed a motion for new trial which was denied. The defendant excepted to this ruling and the case is here for review.
1. While it is true that a tenant cannot dispute the landlord's title in a dispossessory proceeding, this relationship must be shown to exist before this rule applies. Griffeth v. Wilmore, 46 Ga. App. 96 (2) ( 166 S.E. 673). The plaintiff made an agreement with the defendant's agent to accept a certain sum each month. The defendant insists that this was not rent, whereas the plaintiff contends that it was. Both parties did agree that the agreement was made "without prejudice." The plaintiff testified, in regard to the agreement between him and the defendant's attorney, that "without prejudice" meant that the defendant, regardless of what his status was at the time of the agreement, elected to occupy a different status in order to postpone the raising of the issue as to his correct status. To this the defendant's counsel did not agree and the plaintiff's testimony in this behalf amounted to no more than a contention presented by his evidence. The following definition given for "without prejudice" is found in 69 C. J. 1318: "The phrase when incorporated in contracts, stipulations, and other written instruments, imports that the parties have agreed that, as between themselves, the doing or failure to do the agreed act, or the receipt of the money by one and the enjoyment by the other, shall not, because of the doing or not of the act, or the facts of the receipt and payment, have any legal effect upon the rights of the parties in the premises; that such rights will be as open to settlement by negotiation or legal controversy as if the agreement had not been made or the money had not been turned over by the one to the other." In 45 Words Phrases 439, 440, the following definition is given: "The words 'without prejudice' import into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not of themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid. Hinton v. Bogart, 140 N. Y. S. 111, 113, 70 Misc. 418."
We cannot agree with the plaintiff as to his definition of "without prejudice," and the record does not show that both parties intended that the words "without prejudice" should be construed as the plaintiff contends. Therefore we must construe the phrase to have its common meaning. The agreement having been made "without prejudice," the rights of the parties were not affected by the agreement and such rights were open to settlement or negotiation, or legal controversy, as if the agreement and payments had never been made.
2. The will of Emma Parker Mahone Marshall, the late wife of defendant, embraced these items: "Item Second. I give, devise and bequeath my home place, No. 1700 Fifth Avenue, Columbus, Georgia, to my mother, Lila Parker, for and during her natural life, with remainder to my son, William Henry Mahone. Item Third. Even though I have given a life estate in my home place, No. 1700 Fifth Avenue, Columbus, Georgia, to my mother, it is my wish that my husband, George Marshall, be permitted to reside in said residence as long as he shall live and remain unmarried." The question arises as to what interest vested in the defendant under this will. It was held in Hunter v. Stembridge, 12 Ga. 192, 194, that "when the words of the will are those of recommendation, or precatory, or expressing hope, or that the testator has no doubt, c. — if the objects in regard to whom such terms are used are certain, and the subjects of property to be given, are also certain, the words are considered imperative, and create a trust."
It is stated in Redfearn, Wills and Administration of Estates in Georgia, p. 321, § 183: "A precatory trust is one in which the maker of the instrument has expressed words of entreaty, wish, or recommendation in a manner sufficiently imperative to show that he intended that his wishes be observed by the person to whom he has conveyed the legal title to property. When a testator devises or bequeaths property to a person, and in so doing uses words of wish or entreaty — precatory words — in relation to some other person or object, a trust will arise which equity will enforce, provided (1) that it appears that the intention of the testator is to make the wish, entreaty, or request so imperative that the legatee or devisee has no option as to whether he will observe the testator's wishes or not; (2) that the beneficiaries are sufficiently designated as to be ascertainable; (3) that the subject matter — the trust property — is clearly designated; and (4) that the manner in which the trust is to be administered is expressed."
In this case it is clear that the testatrix intended to grant the mother control of the house, but that the defendant was to have the right to live there so long as he remained unmarried. This in effect created a joint life estate in Lila Parker and the defendant. Lila Parker sold her life estate to the plaintiff, but she could convey no better title than she possessed. Therefore, upon purchasing Lila Parker's life estate the plaintiff became a tenant in common with the defendant. A dispossessory warrant will not lie if the relationship of landlord and tenant does not exist. If the defendant holds possession in some other capacity rather than as a tenant, this remedy is not applicable. Watson v. Toliver, 103 Ga. 123 ( 29 S.E. 614); Henry v. Perry, 110 Ga. 630 ( 36 S.E. 87); Garrick v. Tidwell, 151 Ga. 294 ( 106 S.E. 551); Griffeth v. Wilmore, 46 Ga. App. 96. The trial judge erred in denying the defendant's motion for a new trial.
Judgment reversed. Felton, C. J., and Nichols, J., concur.